International Law 1914/2014

Given the growing memorialisation of the beginning of the First World War, Prof. Fleur Johns charts a number of the continuities and ruptures between our understanding then and now of International Law and the international environment.

Looking back to mid-1914 from mid-2014, it is hard to see beyond the piles of bodies. History barely seems up to the task of grappling with this tumultuous interstice. Perhaps, rather than approaching this interval as a sequence of historical contexts, we might conceive of it – and our relationship to it – in terms of a welter of styles, or as a ‘storage room for costumes’ as Nietzsche suggests the ‘hybrid European’ makes of history. Now, as in the immediate aftermath of World War I, Dada seems the only way to concoct something approaching a response to that war and what we’ve done since.

So, trying on hobble skirt and tunic: What among the ways international law might have been thought and done in 1914 seem to linger today? And how is the tenor and orientation of international lawyers’ work in 2014 different to what we might have been thinking and doing in early 1914? Here, in place of an historical tableau, is a collage, in the tradition of Kurt Schwitters’ Merzbilder or, in contemporary terms, a mash-up: three points of connection between 1914 and 2014 and three points of disjunction. Let’s start with some possible points of connection.

First, international legal work today remains indebted to a therapeutic style and orientation that had reached a high point by 1914. Sigmund Freud released a small cavalcade of publications in that year, among them ‘Remembering, Repeating and Working-Through’, the fifth of his six Papers on Technique. The legacies of this work are obviously profound and complex, as much outside the terrain of analysis as within it. In international law, the idea of the discipline as a field for working through some collective compulsion to repeat the past remains pervasive.

So too does a more generalized sense of international law as therapeutic remain axiomatic; if anything, this has intensified. In 1914, the third of the Hague Conferences held in 1899 and 1907 was supposed to take place, but was rescheduled and then abandoned. And as every international law student knows, those conferences resulted in a series of treaties elaborating the laws and customs of war. International law in these instruments operated for the most part in a counseling mode: it was concerned with temperance; teaching better manners rather than forsaking the will to dominate by force.

In this tradition, making international peace today seems largely a matter of making war in the name of ‘security’ and ‘protection’ with weapons and methods decreed legal by international law: a ‘working through’ of unsanctioned violence with sanctioned violence. Conflict and violence – sexual violence perhaps especially – are to be channeled and transferred and hence ‘cured’. The UN describes its peace-building efforts as targeting ‘the risk of lapsing or relapsing into conflict’ through constitution making and security sector reform. Their goal is the installation of a new culture, a new temperament.

Second, many international lawyers continue to work with an understanding that the discipline operates most properly in a delivery mode: delivering on a plan determined somewhere else and by someone else, with international law positioned after the fact of power. This is an idea that was championed by leading American international lawyers like Elihu Root and James Brown Scott in the first quarter of the twentieth century. What’s more, the blueprints found in many international lawyers’ desk drawers today continue to look quite like at least some of those that were around in 1914.

Root’s and Brown Scott’s ideal was for an international system modeled on the United States constitution; a system with third party dispute settlement as its keystone. Today, the ideal of ‘constitutionalizing’ on the global plane, more or less in this mode, continues to attract proponents. Root, the first and longest serving president of the American Society of International Law and later president of the Carnegie Endowment for International Peace, also served as US Secretary of War under McKinley and Roosevelt, with responsibilities for the Philippines and Cuba. In these roles, Root was an avid champion of free trade, in wartime as much as in peacetime. And he was not alone. The 1865 Declaration of Paris and the 1907 Hague Conventions made clear that the maintenance of trade throughout belligerency and the legal protection of the ‘neutral merchant’ in wartime were priorities for early 20th century international lawmakers.

For Root, in 1914, these priorities translated into a project of fostering US preparedness for war, through the augmentation of its economic and military might, against Woodrow Wilson’s policy of neutrality. Again, traces of this orientation towards preparedness for military and economic conflict are apparent in contemporary versions of international peace through law, despite the far greater attention given by international law scholars to Wilson’s legacy. Writing of ‘America’s Pacific Century’ in 2011, for example, then Secretary of State Hillary Clinton emphasized the close complementarity between military and economic objectives and the need to promote a ‘security and economic architecture’ capable of confronting ‘evolving security challenges’.

Third, international lawyers in 1914 were, to a significant degree, fixated on tempering and subsuming the perceived pathologies of minority and religious affiliation. The 1878 Treaty of Berlin had included guarantees of religious freedom and other minority rights as conditions for state recognition and territorial gain. As Nathaniel Berman has observed, it promoted a ‘fantas[y]’ of ‘the universality and rationality of international authority’ through the internationalist absorption and redirection of sectarian desire. The profound ambivalence of this commitment became evident during the pogroms and persecutions of the late 19th and early 20th century. As historian Carole Fink relates, US Secretary of State Knox cautioned President Taft in 1913 against ‘impugn[ing] our exclusive claims in Latin America’ by meddling in Russia’s sphere of influence on the strength of ‘moral obligations’ towards European Jews and others that the US could not hope to fulfill.

Today, international authority continues to feed on the intensity and irrationality often identified (rightly or wrongly) with religious faith and sub-state allegiance, with a view to their transcendence on the global plane. Speaking last year at the Opening of the Fifth Global Forum of the United Nations Alliance of Civilizations (an initiative designed to counter extremism) UN Secretary-General Ban Ki-Moon called for ‘responsible leadership’ internationally, his vision of which entails superseding ‘divisions along cultural and sectarian lines’. For Ban Ki-Moon, the choice confronting the youth of the Middle East and elsewhere is between the infancy of ‘frustration and radicalization’ and the ‘maturity’ of those who ‘cho[o]se not to hate’. In this, he echoes a developmental line already circulating in 1914, but especially influential in the interwar period, of minority and religious allegiance as ‘primitivism’ the disciplined embrace of which might augment and reinvigorate international authority. (Again, Nathaniel Berman’s work is a key reference on the latter point.)

If there are continuities, such as these, there are also significant points of disjunction between what we are up to now and what we might have been then.

Among them, consider how much less faith is in evidence today in powers of expert oversight. Much of what was believed in 1914 about global policymakers’ capacities of planning and foresight no longer seems to hold. Germany’s infamous Schlieffen plan of 1905, modeling a Franco-German War, worked out troop movements down to the hour and train car. Now, military operations are conducted on the basis of ‘real-time intelligence’ gleaned, in large part, from remote sensing apparatus. Military planning is modeled, often explicitly, on the just-in-time delivery operations of companies like Walmart. Policy-making on the global plane, too, increasingly has this just-in-time tenor. Through its Global Pulse initiative, the UN envisions enabling policymakers to ‘understand human well-being and emerging vulnerabilities in real-time’ through the mining and automated analysis of online content, data exhaust, and physical sensors. Indeed, it seems to have become intolerable, over the last hundred years, to believe that large-scale policy planning were possible, in politics and military affairs, as much as in the economy.

A second break-point with 1914, related to the first, is the advent of financialization. This is the term given to the unprecedented influence borne by financial markets, financial institutions and financial elites over global social and economic life. Commonly cited markers of this include extraordinary rises in household sector debt; increased proportions of GDP attributable to the finance, insurance and real estate sectors, as opposed to trade or production; increased income inequality in many nations; the elevated volume and velocity of trading in a widened array of financial instruments; and the generalization of skills and expectations of risk management or risk arbitrage.

Among the transformations so wrought is a change in the discourse of global development, so that connecting the global poor up with financial circuits and webs of debt – through mobile money, for example – has come to seem more important, in many instances, than capitalizing them. The rhetoric of underdevelopment (central to the theory of modernization) has increasingly been displaced by one of economic stagnation, on the understanding that nothing is worse for a risk arbitrageur than the absence of movement. Financialization encourages every household, no matter how poor, to be thought of as a hub of financial trade. And many now working in law and development seem to share this view, albeit with important divergences. Since 2011, the World Bank has published a Global Financial Inclusion (Global Findex) Database, funded by the Bill & Melinda Gates Foundation, that ‘measures how adults in 148 countries save, borrow, make payments and manage risk’.

A final point of disconnection between now and 1914 is the diffusion of war and its blurring with policing in contemporary settings, alongside a decline of the pacifist utopianism by which international legal work was to a large degree marked in 1914. Despite the commitment of its first President, Elihu Root, to war-preparedness, the American Society of International Law was founded in 1906 as a self-described ‘product’ of the American Peace Movement. In 1914, Bertrand Russell was imprisoned for opposition to World War I and Mahatma Gandhi experienced his first arrest, campaigning for Indian rights in South Africa. Shortly afterwards, Rosa Luxemburg was imprisoned for her opposition to World War I in Germany. They did so in part by appeal to international norms and institutions, whether existing or imagined at that time.

Today, proportionality rather than pacifism seems to be the archetypal commitment among international lawyers. And this is understandable as, in relation to war, it seems so much harder to take an informed position on whom or what to be against. War seems to have been devolved into a seemingly infinite, shifting array of states of juridified violence, from ‘cyber warfare’ to the ‘war on terror’.

These breaks with 1914 ought not, however, to blind us to the many ways in which our approach to these contemporary conditions remains indebted to early twentieth century thought and practice. The diffusion of war and its merger with policing seem to flow, in part, from lawful determination to root out extremes of sub-state or non-state allegiance, above all those of a religious persuasion. Financialization owes something to the therapeutic style in its effort to make everyone responsible managers of their own contending drives; consider the emphasis placed today on tutoring populations in financial literacy from the earliest of ages. The decline of the planner is perhaps an outcome of our determination to tailor legal and policy measures to deliver on the demands of prevailing political or economic elites – and to attribute global action and agency to, and take our legal lead from, an extraordinarily small number of powers. Perhaps plans just became too numerous and unwieldy, throughout the twentieth century, to allow us to continue carrying out this tailoring brief.

Whatever the way we fit these pieces together, one thing becomes clear: one hundred years is a long time, but 1914 is never as far away as one might think. And always, as Brecht reminds us, there remain: ‘So many particulars. So many questions.’

These remarks are based on those made during the concluding panel of the recent ANZSIL Conference, co-chaired by Prof. Anne Orford and Dr. Anna Hood, which brought together representatives of the Japanese Society of International Law, the Canadian Council of International Law and the Australian and New Zealand Society of International Law, to reflect upon the theme ‘Towards International Peace through International Law’ in view of the centenary of the commencement of World War I.